Gujarat High Court
Madhubhai Mohanbhai Chauhan vs The State Of Gujarat on 19 June, 2024
NEUTRAL CITATION
C/SCA/8815/2024 JUDGMENT DATED: 19/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8815 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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MADHUBHAI MOHANBHAI CHAUHAN & ORS.
Versus
THE STATE OF GUJARAT & ORS.
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Appearance:
MR KAUSHAL P MODI(12876) for the Petitioner(s) No.
1,10,2,3,4,5,6,7,8,9
for the Respondent(s) No. 2,3,4
MS SURBHI BHATI AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
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NEUTRAL CITATION
C/SCA/8815/2024 JUDGMENT DATED: 19/06/2024
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Date : 19/06/2024
ORAL JUDGMENT
1. Present petition is filed under Articles 226 and 227 of the Constitution of India and under the provisions of the Industrial Disputes Act, 1947 (hereinafter be referred to as "the ID Act") for the following reliefs:-
A. YOUR LORDSHIPS be pleased to admit this Petition;
B. YOUR LORDSHIPS be pleased to allow this Petition by issuing a writ of Certiorari or any other appropriate writ order or direction thereby quashing and setting aside the order passed by the Ld. Labour Court vide Ref. - T (LCA) No. 854 of 2002 dated 14.08.2023 by reinstating the petitioners at the place they have been terminated, holding the award and judgment to be unjust, illegal and arbitrary in the interest of justice;
C. YOUR LORDSHIPS be pleased to issue a writ, order or direction to quash and set aside the order passed by the Ld. Labour Court vide Ref. - T (LCA) No. 854 of 2002 dated 14.08.2023 and to remand back the matter for fresh consideration in the interest of justice;
D. Pending hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to stay the operation, execution and implementation of the award and judgment passed by the Ld. Labour Court in Ref. - T (LCA) No.854/2002;
E. YOUR LORDSHIPS be pleased to grant such other and further reliefs as deemed fit in the interest of justice;
2. That the facts of the present case are that the petitioners are the daily wagers, who had been employed by Bodakdev Gram Panchayat, respondent No.2 herein as sanitation workers between 1984 to 1997 and had been performing various types of Page 2 of 10 Downloaded on : Mon Jun 24 21:17:47 IST 2024 NEUTRAL CITATION C/SCA/8815/2024 JUDGMENT DATED: 19/06/2024 undefined sanitation work from early morning till late evening. It is the case of the petitioners that they have been fulfilling their duties for more than 300 days a year and did not take a single day off in sanitation work and the work done by them was of a permanent nature. On 25.04.2002, the official representative of respondent No.2 had verbally terminated the petitioners from the services without giving any notice, notice pay, unemployment benefits or conducting any financial audit. It is also the case of the petitioner that official representatives of respondent No.2 have not complied with legal obligations, seniority and the petitioners have been dismissed from the services and after dismissal, the petitioners made a request for work to the authority, but the official including the Talati - Cum - Mantri, Sarpanch and members of Chairpersons of the Nagar Palika did not accept the request of them. The work which was carried out by the petitioners is still being continued by other labourers in place of them after termination. Being aggrieved by the inaction on the part of the respondent - authority, the petitioner filed reference before the Labour Court with a prayer to reinstate them at the original place of work along with the back wages. It is the case of the petitioners that their appointments were made verbally and without any appointment letter or order, however, the termination of them were illegal, without following due procedure as prescribed under the provisions of the Industrial Disputes Act and the settled position of law laid down by the Hon'ble Supreme Court. The respondent No.2 before terminating the petitioners had neither maintained any seniority list nor had it published nor followed the rule of first come last go and some of the employees to the captioned reference case were retained while the petitioners were unfairly not reinstated in service.
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3. Being aggrieved and dissatisfied with the inaction on the part of the respondent - authority, the petitioners have preferred the present petition.
4. Heard Mr.Kaushal Modi, learned counsel appearing for the petitioners and perused the materials available on record.
5. Mr.Kaushal Modi, learned counsel appearing for the petitioners has submitted the same facts which are narrated in the memo of petition and has submitted that though the petitioners have worked for more than 12-13 years, their services came to be terminated without following due procedure of law. He has submitted that the observation made by the Labour Court is erroneous, against settled principles of law and against the facts of the case and, therefore, the same deserves to be quashed and set aside. He has also submitted that the Labour Court has not considered relevant material produced by the petitioners in support of their and though the petitioners have competed 240 days and since they are working for more than 12-13 years, the action of the respondent in terminating the services of the petitioners is bad in law and the same deserves to be quashed and set aside.
6. It is the contention on part of the petitioners that the Gram Panchayat is now a part of the Ahmedabad Municipal Corporation. It is contended that the petitioners have worked since long for more than 12 to 13 years with respondent - Gram Panchayat and their services came to be terminated in 2002 without following the due process of law and without giving any Page 4 of 10 Downloaded on : Mon Jun 24 21:17:47 IST 2024 NEUTRAL CITATION C/SCA/8815/2024 JUDGMENT DATED: 19/06/2024 undefined opportunity and without initiating any inquiry and even they have not paid any retrenchment compensation though they have retrenched by respondent - authority without following due process of law. Therefore, the petitioners have raised their grievance before the Labour Court by preferring the reference. The impugned award passed by the Labour Court is arbitrary and improper and the same is passed without giving any proper opportunity and without there being any cogent and convincing evidence.
7. Having considered the submission canvassed by the learned counsel appearing for the petitioners and the evidence on record and the averments made in the petition and perused the impugned award passed by the Labour Court, it appears that the Gram Panchayat is now a part of the Ahmedabad Municipal Corporation. It appears that the petitioners are the daily wagers working with respondent - Gram Panchayat as sanitation workers between 1984 to 1997 and their salary is fixed at the rate of Rs.300/- per month. The Labour Court, after considering the evidence on record, has reached to the conclusion that the petitioners have not proved the fact that they have completed for more than 240 days in each calendar year and even in last three preceding years and they have not produced cogent evidence. The Labour Court has rightly interpreted the provisions of Section 25(B)(1)(2) of the ID Act as the petitioners - workmen have not established such facts by leading cogent evidence. The Labour Court has, after considering whole record and the evidence and the decision of the Delhi High Court in the case of Mehar Chand Vs. N.D.M.C. reported in 2002 LLR 1059, observed that before terminating the petitioners from the service, they Page 5 of 10 Downloaded on : Mon Jun 24 21:17:47 IST 2024 NEUTRAL CITATION C/SCA/8815/2024 JUDGMENT DATED: 19/06/2024 undefined have not completed 240 days in a preceding year and they have not proved such fact and, therefore, the Labour Court has not granted such benefit under Section 25(F) of the ID Act.
8. It is worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Range Forest Officer Vs. S. T. Hadimani reported in AIR 2002 SC 1147. The relevant head note of the decision are as under:-
"Industrial Disputes Act, (14 of 1947), Ss 25F, 10 - Retrenchment compensation - Termination of services without payment of - Dispute referred to Tribunal - Case of workman / claimant that he had worked for 240 days in a year preceding his termination - Claim denied by Management - Onus lies upon claimant to show that he had in fact worked for 240 days in a year - In absence of proof of receipt of salary or wages or record of appointment, filing of an affidavit by workman is not sufficient evidence to prove that he had worked for 240 days in a year preceding his termination."
9. It is further beneficiary that this view is reiterated by the Coordinate Bench of this Court in the case of Mehsana Nagarpalika thro Chief Officer Vs. Ashwinkumar Babulal Barot in Special Civil Application No.19430 of 2018 and allied matter dated 02.02.2024 wherein the Court has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of R. M. Yellatti vs. Asst. Executive Engineer reported in 2006 (1) SCC 106 in para 7.4 which reads as under:-
"7.4 In light of above discussion, if we peruse the decisions relied upon by the learned advocate for the workman, in case of R. M. Yellatti (supra), the Hon'ble Supreme Court held as under;
"12. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not Page 6 of 10 Downloaded on : Mon Jun 24 21:17:47 IST 2024 NEUTRAL CITATION C/SCA/8815/2024 JUDGMENT DATED: 19/06/2024 undefined apply to the proceedings u/s. 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere nonproduction of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Art. 226 of the Constitution of India will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.
13. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commencing from 22.11.1988 to 20.06.1994. This period is the period borne out by the certificate (exhibit W1) issued by the former Asstt. Executive Engineer. The evidence in rebuttal from the side of the management needs to be noticed. The management produced five nominal muster rolls (NMRs), out of which 3 NMRs, exhibit M1, exhibit M2 and exhibit M3, did not even relate to the concerned period. The relevant NMRs produced by the management were exhibit M4 and exhibit M5, which indicated that the workmen had worked for 43 days during the period Page 7 of 10 Downloaded on : Mon Jun 24 21:17:47 IST 2024 NEUTRAL CITATION C/SCA/8815/2024 JUDGMENT DATED: 19/06/2024 undefined 21.01.1994 to 20.02.1994 and 21.03.1994 to 20.04.1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour court has rightly held that there is nothing to disbelieve the certificate (exhibit W1). The High Court in its impugned Judgement has not given reasons for discarding the said certificate. In the circumstances, we are of the view that the division bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the labour court and confirmed by the learned single judge vide order dated 7.06.2000 in writ petition no. 17636 of 2000. This is not, therefore, a case where the allegations of the workman are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workman was working in SD-1, Athani and exhibit W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No. 1, Athani591304. In the present case, the defence of the management was that although exhibit W1 refers to the period 22.11.1988 to 20.06.1994, the workman had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the labour court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this Judgement on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workman had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (exhibit W1). In the circumstances, the division bench of the High Court had erred in interfering with the concurrent findings of fact.
14. Before concluding, we would like to make an observation with regard to cases concerning retrenchment/ termination of services of daily waged earners, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In Page 8 of 10 Downloaded on : Mon Jun 24 21:17:47 IST 2024 NEUTRAL CITATION C/SCA/8815/2024 JUDGMENT DATED: 19/06/2024 undefined such cases, we are of the view that the State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days for which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government."
10. It is also worthwhile to refer to the decision of this Court in the case of State of Gujarat thro Dy. Executive Engineer Vs. Balabhai Mangalbhai Solanki and others in Special Civil Application No. 12429 of 212 dated 22.12.2023 wherein the Court has held and observed in para 3.6 as under:-
"3.6 ......... the respondent workman has not completed 240 days in any of the year. As per the ratio of Hon'ble Apex Court reported in 2002 (3) SCC 25 between Range Forest Officer vs. S. T. Hadimani, the onus of proof lies on the concerned workman to move before the Labour Court by leading evidences that he had completed 240 days. However, in the present case the respondent workman has failed to prove the same and therefore the judgment and award of the Labour Court is bad in law and is required to be quashed and set aside."
11. Considering the facts and circumstances of the case and the aforesaid decisions and the impugned award, it reveals that originally, the petitioners worked with Bodakdev Gram Panchayat where the terms and conditions of the service of the Gujarat Panchyat Act is applicable and though the petitioners are not recruited by the Panchayat and they are purely appointed on temporary basis, they have failed to establish the fact that they have been appointed by the respondent - Panchayat after following due process of law. In view of the above, I am of the opinion that I do not find any illegality and infirmity in the Page 9 of 10 Downloaded on : Mon Jun 24 21:17:47 IST 2024 NEUTRAL CITATION C/SCA/8815/2024 JUDGMENT DATED: 19/06/2024 undefined impugned award passed by the Labour Court and even the Labour has rightly interpreted Section 25(F), (G) and (H) of the Act and, therefore, the petition deserves to be dismissed.
12. In the result, the petition being meritless deserves to be dismissed and accordingly, it is dismissed.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 10 of 10 Downloaded on : Mon Jun 24 21:17:47 IST 2024